Personal Property Securities Act. Australia

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      (iii) subsection (2) applies.

      (2) This subsection applies if:

      (a) for any collateral, a registration is effective with respect to the collateral; or

      (b) for any collateral, the secured party has possession of the collateral (other than possession as a result of seizure or repossession); or

      (c) for the following kinds of collateral, the secured party has control of the collateral:

      (i) an ADI account;

      (ii) an intermediated security;

      (iii) an investment instrument;

      (iv) a negotiable instrument that is not evidenced by a certificate;

      (v) a right evidenced by a letter of credit that states that the letter of credit must be presented on claiming payment or requiring the performance of an obligation;

      (vi) satellites and other space objects.

      Note: For what constitutes possession and control of collateral, see Part 2.3.

      (3) A security interest may be perfected regardless of the order in which attachment and any step mentioned in subsection (2) occur.

      (4) A single registration may perfect one or more security interests.

      22 Perfection — goods possessed by a bailee

      Perfection of security interest

      (1) A security interest that has attached to goods in the possession of a bailee (other than the grantor or the debtor) is perfected if any of the following applies, regardless of when the security interest attached to the goods:

      (a) the security interest is perfected by registration, as provided by section 21;

      (b) the security interest is perfected by possession, as provided by section 21, because the bailee possesses the property on behalf of the secured party;

      (c) the bailee issues a document of title to the goods in the name of the secured party;

      (d) the bailee issues a negotiable document of title to the goods, and the secured party has a perfected security interest in the document.

      Temporary perfection while negotiable document of title in transit

      (2) A security interest in goods in the possession of a bailee (other than the grantor or the debtor) is temporarily perfected for the period:

      (a) starting at the time the bailee issues a negotiable document of title to the goods; and

      (b) ending at the end of the day the secured party takes possession of the document.

      (3) The security interest in the goods becomes unperfected at the end of the period mentioned in subsection (2), unless the security interest is perfected otherwise than under subsection (2) before the end of the period.

      (4) However, subsection (2) does not apply, and is taken never to have applied, unless, before the end of the period of 5 business days after the day of issue of the negotiable document of title:

      (a) the secured party takes possession of the document; or

      (b) the security interest is perfected otherwise than under that subsection.

      Part 2.3

      Possession and control of personal property

      23 Guide to this Part

      This Part deals with the concepts of possession and control of personal property.

      A grantor and secured party cannot both have possession of collateral. There are special rules about possession of the following:

      (a) goods transported by a common carrier;

      (b) negotiable instruments not evidenced electronically;

      (c) chattel paper evidenced electronically;

      (d) investment instruments evidenced by a certificate.

      Control of certain types of personal property is effective to perfect a security interest in the property (see paragraph 21(2)(c)). This Part includes some special rules about control of the following:

      (a) ADI accounts;

      (b) intermediated securities;

      (c) investment instruments;

      (d) letters of credit;

      (e) negotiable instruments not evidenced by a certificate.

      24 Possession

      Possession by one party exclusive of possession by others

      (1) A secured party cannot have possession of personal property if the property is in the actual or apparent possession of the grantor or debtor, or another person on behalf of the grantor or debtor.

      (2) A grantor or debtor cannot have possession of personal property if the property is in the actual or apparent possession of the secured party, or another person on behalf of the secured party.

      Timing rule for possession of goods transported by common carrier

      (3) A grantor or debtor to whom goods are transported by a common carrier acquires possession of the goods only when the earlier of the following occurs:

      (a) the grantor or debtor, or another person at the request of the grantor or debtor, actually acquires possession of the goods;

      (b) the grantor or debtor, or another person at the request of the grantor or debtor, acquires possession of a document of title to the goods.

      Possession of certain negotiable instruments

      (4) A person (the first person) has possession of a negotiable instrument that is not evidenced by an electronic record if, and only if, the first person, or another person on behalf of the first person, takes physical possession of the instrument.

      Note: For possession of investment instruments, see subsection 24(6).

      Possession of chattel paper that is evidenced electronically

      (5) A secured party has possession of chattel paper that is evidenced by an electronic record if, and only if:

      (a) a single authoritative copy of the record exists which is unique, identifiable and unalterable (except as set out below); and

      (b) the authoritative copy identifies the secured party as the transferee of the record; and

      (c) the authoritative copy is communicated to, and maintained by, the secured party or the secured party’s agent; and

      (d) copies or revisions of the record that change the transferee of СКАЧАТЬ